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O'Grady v. Sparling

O'Grady v. Sparling, [1960] S.C.R. 804, was a landmark Supreme Court of Canada decision on the constitutionality of overlapping federal and provincial laws. The Court held that there was no conflict between federal dangerous driving offences, which only prohibited "advertent" negligence and provincial careless driving offences, which included "inadvertent" negligence. The analysis used here was later to be known as the paramountcy doctrine.

Background

The defendant was charged under section 55(1) of the Manitoba Highway Traffic Act which prohibited driving “on a highway without due care and attention or without reasonable consideration for other persons using the highway”. The defendant challenged the law, claiming that it was beyond the power of the province because the federal government had “occupied the field” with a similar criminal provision in section 221 [now 202] of the Criminal Code of Canada, which prohibited driving with "wanton or reckless disregard for the lives or safety of other persons."

The issue before the Court was whether provincial laws relating to negligence with penal consequences would necessarily be a criminal law and thus encroach on federal jurisdiction.

Opinion of the Court

The opinion of the Court was written by Judson J., with Kerwin, Taschereau, Fauteux, Abbott, Martland, and Ritchie concurring.

Judson held that “the power of a provincial legislature to enact legislation for the regulation of highway traffic is undoubted”. He reaffirmed the principle that there such a thing as a "general area" or "domain" of criminal, instead the two government can make law on the same matter by creating a distinction between the types of culpability.

There is a fundamental difference between the subject-matter of these two pieces of legislation which the appellant's argument does not recognize. It is a difference in kind and not merely one of degree. This difference has been recognized and emphasized in the recent writings of Glanville Williams on Criminal Law, para. 28, p. 82, and by J. W. C. Turner in the 17th edition of Kenny's Outlines of Criminal Law. I adopt as part of my reasons Turner's statement of the difference to be found at p. 34 of Kenny:

"But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as "wicked", "gross", or "culpable" has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression to explain itself.’’

On the facts, Judson found that there was overlap between the laws however “there is no conflict between these provisions in the sense that they are repugnant”. The provincial law extended to include “inadvertent negligence” as well as regular negligence. It was enough that “the two pieces of legislation differed both in legislative purpose and legal and practical effect” to justify both of them.

Dissent

Cartwright and Locke JJ., in dissent, held that there is no possibility of overlapping domains. He stated that the leading case on the matter, ‘’Prov. Sec. of PEI v. Egan’’ [1941] S.C.R. 396, cannot be read so broadly as to give the provinces unlimited powers over highways. Matters in relation to those within the federal government’s powers are exclusive and comprehensive and do not allow for complementary law.

In my opinion when Parliament has expressed in an Act its decision that a certain kind or degree of negligence in the operation of a motor vehicle shall be punishable as a crime against the state it follows that it has decided that no less culpable kind or degree of negligence in such operation shall be so punishable. By necessary implication the Act says not only what kinds or degrees of negligence shall be punishable but also what kinds or degrees shall not.

On the facts, he found that there was no difference between the provincial Act and the provision in the Criminal Code which occupies a domain exclusive to the federal government.